New Rules and Expert Opinions

By Stacey L. Stevens and Melanie A. Larock

Introduction

Expert evidence is crucial to the outcome of a personal injury case. The amendments to the Rules of Civil Procedure should rein in the use of and reliance of experts at trial.¹ The goals of the amendments include more timely disclosure of expert opinions, disclosure of the basis of an expert’s opinion, and the acknowledgment of an expert’s duty to assist the court with opinion evidence that is fair, objective, non-partisan and within his or her area of expertise. The new Rule 53.03 outlines the requirements of an expert report and provides for a more scientific approach to expert evidence by requiring experts to specify the factual assumptions on which their opinions are based, any research conducted by them that led to their opinions, and all documents relied upon in forming their opinions (collectively, “foundational information”). Counsel should provide clear and fair instructions to experts and should see to it that experts meet their duty to the court and understand what is needed in their reports to ensure Rule 53.03 compliant reports.

Counsel’s Instructions and Communications with Experts

1. Drafting a report in compliance with Rule 53.03

It is counsel’s role to ensure that the expert report deals with all of the relevant issues in a comprehensive manner that is accurate and fair, and now adheres to Rule 53.03. The prior rule only required an expert to state his or her name, address, qualifications, the opinion in a summary basis and the substance of his or her proposed testimony. The following detailed information is now required in an expert’s report:

1. The expert’s name, address and area of expertise;
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise;
3. The instructions provided to the expert in relation to the proceeding;
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;
6. The expert’s reasons for his or her opinion, including, a description of the factual assumptions on which the opinion is based, a description of any research conducted by the expert that led him or her to form the opinion, and a list of every document, if any, relied on by the expert in forming the opinion; and,
7. An acknowledgement of expert’s duty under Rule 4.1 signed by the expert.²

The Rule goes on to provide that an expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in a Rule 53.03 compliant report or a supplementary report.

In Beasley v. Barrand,³ the Court took a strict approach to ensure that expert reports in substance and form comply with the new Rule 53.03. Further, Moore, J. stated, “the defendants have simply not made reasonable efforts to assist the three doctors to an understanding of the requirements of Rule 53.03 and to enlist their help to assist the court by properly reporting on their opinion evidence in advance of the trial.”⁴ In light of this recent pronouncement, counsel should ensure that the expert understands his or her overriding duty to the court and the requirements of Rule 53.03. Counsel is obliged to see to it that an expert meets his or her duty to the court.

Counsel’s advocacy may affect the persuasiveness of an expert’s opinion. However, given that the instructions provided to the expert by counsel must now be included in the expert’s report, counsel when retaining and instructing an expert should be more objective in their approach. Practices such as instructing experts to ignore facts or documents should also be thwarted.

1. Expert’s Use of Language

A word, phrase, sentence or paragraph contained in a report can affect the outcome of a case. For example, experts often use optimism in reports and conclude that the injured person has greatly improved since the accident. An expert that reports an injured person’s injuries in too optimistic of a light is an unfair representation that  minimizes the injured person’s symptoms. A more accurate representation is that the injured person has reached a plateau and there is no expectation of future improvement.

The use of clear, unambiguous and persuasive language cannot be overstated.  Many experts are unclear as to the degree of certainty to which they must state their opinions and are often reluctant to state an opinion unless they are certain of it. Therefore, experts should be made aware of the applicable legal standards in order to use appropriate language, such as “probably” as opposed to “possibly”. Experts should also be made aware of the standard for opinions with respect to future events, such as future cost of care, where the expert witness should state that “there is a real and substantial possibility” of a future event occurring and also must state the percentage chances of the possible future event occurring.

Foundational Information of an Expert’s Opinion

In Conceicao Farms Inc. v. Zeneca Corp.,⁵ it was held that in addition to disclosure of an expert’s findings, opinions and conclusions during discovery, the “foundational information” of an expert’s findings, opinions and conclusions should be disclosed. Foundational information includes the facts and observations on which the opinion is based and the instructions given to the expert.⁶ Prior to the rule amendments, the materials that constitute foundational information were not entirely clear. Foundational information may include clinical notes and records, research data, analysis, and test results.

The Court in Bookman v. Loeb outlined the basis of foundational information, as follows:

The respondents also need to be able to respond in a meaningful fashion to the expert reports the plaintiff has delivered. To do so, they must know, among other things, what the expert was retained to provide an opinion on, whether those instructions changed over time, whether the expert’s opinions themselves have changed over time, and what instructions or assumptions the expert was told to make in formulating his opinion. If the expert has relied on any documents from the court proceedings, or other documents, the respondents need to know what the expert has relied on, in order that their experts can respond in a meaningful fashion. If the expert has relied on particular articles or legal principles, again, the respondents are entitled to know this, for the same reason.⁷

Rule 53.03 appears to have codified foundational information to include the instructions provided to the expert, the facts and assumptions upon which the opinion is based, any research conducted that led to the opinion, and all documents relied upon.

The new rule mandates listing every document relied on by the expert in forming the opinion. However, many of the documents relied upon may or may not be entered into evidence. Given that an expert may be left to draw his or her own factual conclusions from the evidence he or she is given, much of which may not be available to the court, the facts must at least be stated. The facts upon which an expert’s opinion is based must be proved by evidence. Further, by stating the factual underpinnings of the expert’s conclusions, an expert’s impartiality is exposed if he or she omits to consider material facts, which detract from his or her opinion. The rule also encourages counsel to provide all relevant documents, whether favourable or unfavourable.

Range of Opinions

Where differences of opinions exist among experts, it is important to determine the extent or range of such differences. Courts do not have the luxury to wait until experts in the relevant field have reached a consensus. The judge must reach a timely decision based on the information available, which is not judged based on a standard of scientific certainty. The new Rule 53.03 stipulates that where there is a range of opinions, the expert must outline in their report the range and where the expert’s opinion falls within that range. This scientific approach will assist the court to appreciate the state of uncertainty and the range of reasonableness. By further incorporating into the report the factual assumptions upon which the opinion is based, the judge can determine whether an expert has ignored certain facts or documents and the different theories and models experts are operating under. Therefore, it is easier for a judge to determine why different experts reach different conclusions, either because the expert is a “hired gun” or legitimately based on differences of opinions. Additionally, describing the range of opinions will facilitate the meeting and discussion among opposing experts in an attempt to narrow or resolve issues. Experts can set out the areas of agreement and disagreement and the reasons to assist the court, which advances their overarching duty to the court.

Credibility of Experts: An opinion that is fair, objective and non-partisan

Experts must acknowledge their duty of impartiality to the court in their reports.⁸

Cross-examination on an expert’s acknowledgement of duty is an additional way to expose bias.

In Docherty v. Lauzon,⁹ Campbell, J. opined about the role of the expert to assist the court:

It is the role of the trier of fact to weigh the relevant evidence and to make findings of fact. Experts can often be of assistance to a court in the discharge of this function. However, to be helpful, experts must be scrupulously fair and impartial and base their opinions to the extent possible on objectively reliable data. The recent amendments to the Courts of Justice Act, R.S.O. 1990 c. C.43 reinforce that notion. Experts come to court to assist the trier in the pursuit of truth. They are not advocates.¹⁰

An example of an expert fulfilling her duty to the court is found in Deering v. Scugog (Township).¹¹ Dr. Alison Smiley testified as an expert witness in the field of human factors in motor vehicle use and accident/collision analysis. The Court found Dr. Smiley to be a credible expert witness in that, “Dr. Smiley is a witness of forthright demeanor and strong opinions. I found her to be independent in her opinions, a true expert witness present to assist the court.”¹²

The opposite conclusion was drawn in Docherty v. Lauzon.¹³ The Plaintiffs’ expert witness, James R. Hrycay, qualified in accident reconstruction, vehicle kinetics and dynamics, and roadway design was rejected based on a perceived lack of independence. The Court regarded Mr. Hrycay’s evidence as “slanted and, to that extent, untrustworthy.” Mr. Hrycay minimized the relevance or significance of any other factors that may have led to the accident and was entrenched in the view that the defendant ought to be held liable. Therefore, he had acted as an advocate.

In Alfano v. Piersanti,¹⁴ the Plaintiffs challenged the impartiality and independence of expert reports. The court ordered production of e-mails between an expert and his associate that revealed that the expert had assumed the role of an advocate. Therefore, the expert was disqualified due to lack of impartiality.

Comparable British Columbia Expert Rules

The British Columbia Supreme Court Civil Rules with respect to expert reports were amended this past July. Rule 11-6 mirrors the Ontario Rule 53.03 by setting out the requirements of expert reports including:

1. An expert's report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:
   
   1. the expert's name, address and area of expertise;
   2. the expert's qualifications and employment and educational experience in his or her area of expertise;
   3. the instructions provided to the expert in relation to the proceeding;
   4. the nature of the opinion being sought and the issues in the proceeding to which the opinion relates;
   5. the expert's opinion respecting those issues;
   6. the expert's reasons for his or her opinion, including
      
      1. a description of the factual assumptions on which the opinion is based,
      2. a description of any research conducted by the expert that led him or her to form the opinion, and
      3. a list of every document, if any, relied on by the expert in forming the opinion.¹⁵

The admissibility of a corporate or joint opinion expert report was recently addressed in the British Columbia decision of Jones v. Ma.¹⁶ The defendant tendered an expert report signed by a Forensic Engineer, which stated, “The undersigned is responsible for the opinions expressed in this report.” However, the opinions of a number of experts were included in the report without distinguishing whose opinions were being expressed. Passive words, such as “it was concluded” and “we” were included in the report, which raised the suspicion that the expert opinion was the opinion of multiple experts. It was a question of poorly chosen langue or substance. However, it became known through cross-examination, that several individuals were involved in preparing the report. Yet, these names did not appear in the report. Ehrcke, J. adopted the reasoning in Dhaliwal v. Bassi¹⁷ and excluded the report from evidence. An expert report which contains the opinions of multiple experts must particularize which expert provided which portion of an opinion, the qualifications of each expert, and the facts and assumptions upon which each person contributing to an opinion are set out. Otherwise, cross-examination on the opinion is impossible.

Therefore, drawing upon the British Columbia case law, the requirements of Rule 53.03 and acknowledgement of an expert’s duty should be satisfied for each expert involved in preparing the report.

Conclusion

Expert reports are the heart and soul of a personal injury claim. The new Rule 53.03 should rein in the battle of competing experts. The new rule not only makes it easier to identify bias, but also imposes a more scientific approach by requiring disclosure of the foundational basis of an expert’s opinion. The well-publicized goals of the Rule amendments and judicial admonishment of experts as “slanted and untrustworthy” will promote opinion evidence that is fair, objective and non-partisan.  The best course is to stand behind an objective report preceded by fair instructions that addresses all of the relevant issues and adheres to Rule 53.03. Therefore, it is important that the expert is made aware of his or her overriding duty to the court, rather than to the parties who pay or instruct them. Moreover, the amendments to the Rules of Civil Procedure will give counsel latitude to discredit an expert witness for bias, but also to defeat the basis on which the expert’s opinion rests.